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PETITIONER: P. KESAVAN(DEAD) THROUGH LRS.

       Vs.

RESPONDENT: AMMUKUTTY AMMA & ORS.

DATE OF JUDGMENT26/11/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR  339            1988 SCR  (2)  81  1988 SCC  (1) 202        JT 1987 (4)   575  1987 SCALE  (2)1311

ACT:      Kerala Buildings  (Lease and  Rent Control)  Act, 1965: ss. 11(3),  17 &  20-Eviction-Bona fide  need  of  landlord- Tenant using  building for  non-residential purpose-Landlord whether entitled  to seek eviction on grounds of residential use.

HEADNOTE: %      Sub-section (3) of s. 11 of the Kerala Buildings (Lease and Rent  Control) Act,  1965 permits  eviction of  a tenant where the  landlord bona fide needs the building for his own occupation. The  second proviso  thereto excepts  the tenant depending for  his livelihood  mainly on business carried on in such  building. Sub-s. (1) of s. 17 interdicts conversion of a  residential building  into a  non-residential  one  or vice-versa and  division  of  such  building  into  separate portions except  with the  permission of  the  Accommodation Controller. The  proviso thereto  makes the  consent of  the landlord necessary where such conversion involves structural alteration of the building.      The premises  in question  was being used by the tenant for nonresidential purpose. The respondent-landlord required it bona  fide for  his self-occupation.  The Rent Controller granted permission  under  s.  11(3)  for  eviction  of  the tenant. The  Appellate Authority  and the  District Judge in revision did  not interfere  with the concurrent findings of facts on the bonafide need of the landlord.      In  second  revision  the  contention  that  since  the requirements of  the second proviso to s. 11(3) had not been fulfilled, the  landlord was  not entitled  to eviction  was rejected by  the High  Court on  the ground  that this was a question of  fact and  ail the courts had found in favour of the landlord.      In the  appeal by  special leave,  it was contended for the appellant  that since  the building in question was used for non-residential  purpose by  the tenant and the landlord required the  same for  a residential  purpose, such  a need could not  justify tenant’s  eviction by  virtue of s. 17 of the Act which prohibited such conversion. 82

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    Dismissing the appeal, ^      HELD: l.  The landlord  is entitled  to eviction. It is found as  a fact  that he  bona fide  needed the premises in question for his own use and occupation. Therefore, s. 11(3) has been complied with. [84D-E]      The prescriptions  of s.  17 are  not attracted  to the instant case. The conversion as contemplated by s. 17(1) for which permission  was required  is conversion  by the tenant and cannot  be a  conversion by  the landlord.  The  use  of expression "such  conversion" in  the proviso  to  s.  17(t) indicates  that   in  case   of  conversion  by  the  tenant permission is  required on  the  consent  of  the  landlord. Further-more, the  term "convert"  therein does not denote a mere change  in the  mode  of  occupation  but  covers  only alterations of the physical features. Putting to a different purpose the  user of the building is not a conversion of the building as  such. The building was used for non-residential purposes and  the purpose  for which  it was  sought was for residential purpose. It has been found that the building has rooms which can be used as bed rooms, sitting rooms etc. and it  has   a  kitchen  and  dining  hall.  No  alteration  or conversion is  required if  the building  is to  be used for residential purpose.  There was, therefore, no conversion of the building  as such  involved in  the instant  case, but a change of user of the building. [86A; 85C-F, 86B]      Muhammed v.  Abdul Rahiman,  [1983] K.L.T.  874 and Das Naik v. Narayanan, [1980] K.L.T. 951, approved.      [Since the  appellants-tenants have  been in possession of the  premises for  sometime, it  was  directed  that  the decree for  eviction shall  not be  executed till  30.9.1988 provided they pay arrears of rent, if any, within one month, and undertake  to hand  over vacant and peaceful possession, to pay  future compensation  month by  month before  10th of every month and not to induct any other person.[86D-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  2  of 1982.      From the  Judgment and  order dated  16. 10.1981 of the Kerala High Court in C. R. P. No. 1927 of 1987.      N. Sudhakaran for the Appellants.      E.M.S. Anam for the Respondents. 83      The Judgment of the Court was delivered by A      SABYASACHI MUKHARJI, J. This appeal by special leave is directed against  the order  of the  High Court of Kerala at Ernakulam dated  the 16th  October 1981  in  Civil  Revision Petition No.  1927 of  1981. The appellants are the heirs of the original  tenant. The  original appellant  died and  his heirs have been substituted in his place. The landlord being the respondent  herein wanted  the premises  in question for his own  use and  occupation. He  accordingly applied to the Rent Controller  for permission.  The Rent  Controller after hearing the  parties granted  such permission  The Appellate Authority  upholding  the  order  of  the  Rent  Controller, maintained the  order of  eviction.  There  was  a  revision before the  learned District  Judge.  The  learned  District Judge dismissed  the revision  petition holding  that it was difficult to interfere with the concurrent findings of facts of the  Courts below  on the  bona fide need of the landlord for his own use and occupation.      The tenant  came up  before the  High Court  in  second

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revision and  the High  Court after  hearing the parties and considering the  contentions urged  before it, dismissed the revision  upholding   the  order  of  Rent  Controller,  the Appellate Authority  and the District Court under Section 20 of the  Kerala Building  (Lease and  Rent Control) Act, 1965 that the  landlord required  the premises  for his bona fide need and for self occupation.      The only  contention that  was urged  in the matter was that the  landlord was  not entitled  to eviction under sub- section (3)  of Section  11. Sub-section  (3) of Section l l provides as under:-           "A landlord  may apply  to the  Rent Control Court           for an  order  directing  the  tenant  to  put  in           possession of  the building  if he bona fide needs           the building  for his  own occupation  or for  the           occupation be  any member  of his family dependent           on him."      The contention  urged before the Courts below including the High  Court was  that the  second proviso to Sub-section (3) of  Section 11  had not  been fulfilled  and the  second proviso provides as under:-           "That the  Rent Control  Court shall  not give any           direction to   a  tenant to  put the  landlord  in           possession, if  such tenant  is depending  for his           livelihood mainly on the 84           income derived  from any trade or business carried           on in  A such  building  and  there  is  no  other           suitable building  available in  the locality  for           such person to carry on such trade or business."      All  the   Courts  have   found  against  the  tenant’s contention on  this aspect  of the  matter.  As  this  is  a question of  fact, the High Court in our opinion has rightly declined to interfere with that findings of fact.      Before we  proceed further  it was  pointed out  by the counsel for  the respondents  that in view of the provisions of the said Act and in view of the decision of this Court in the case  of Aundal  Ammal v.  Sadasivan  Pillai,  [1987]  1 S.C.C. 183  the second revision before the High Court in the facts and  circumstances of  this case  did not lie. For the purpose of  this appeal,  we are not proceeding with on that basis but  have examined the facts found by the courts below to find  out if  there is any infirmity in their findings as mentioned hereinbefore.      It is  found as  a fact  that the  landlord  bona  fide needed  the  premises  in  question  for  his  own  use  and occupation. Therefore, Section 11(3) has been complied with.      The only  contention raised  was whether  on the second proviso to  Section 11(3)  of the  Act the  landlord was not entitled to eviction. That was rejected by the High Court on the ground  that this  was a  question of  fact and  all the Courts have  found in  favour of the landlord. We agree with this.  Even   if  a   second  revision   lay  the  scope  of interference by  the High  Court in  the second  revision is very limited. This has been so held by this Court in M/s Sri Raja  Lakshmi   Dyeing  Works   and  others,  v.  Rangaswamy Chettiar,  A.I.R.   1980  S.C.   1253.  We  adhere  to  this principle.      It was  urged before  us that  the building in question was used  for non-residential  purpose by the tenant and the bona fide  need of  the landlord  was said to be for the use and occupation  of the  landlord and  his family  which is a residential purpose.  It was  submitted  that  such  a  need cannot justify  in this  case the eviction of the tenant. It was also  submitted that  Section 17  of the  Act prohibited

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such conversion.  Sub-section (1)  of Section  17  which  is relevant for the present purpose provides as follows:-           "Section 17.  Conversion of  buildings and failure           by land- 85           lord to make necessary repairs:           (1) No  residential buildings  shall be  converted           into a  nonresidential building  or vice-versa and           no such  building shall  be divided  into separate           portions for letting on rent or for other purposes           except with  the  permission  in  writing  of  the           Accommodation Controller:                Provided that  where such conversion involves           structural alteration of the building, the consent           of the landlord shall also be necessary."      It appears  clear that  this conversion as contemplated for which  permission was  required  is  conversion  by  the tenant and  cannot be  a conversion  by the  landlord. Quite apart  from  the  fact  that  in  this  case  there  was  no conversion of the building sought. The building was used for non-residential  purpose  and  the  purpose  for  which  the building was  sought was for residential purpose. It appears to us  that putting  to a  different purpose the user of the building is not a conversion of the building as such. It has been found that the building as it is without any structural change can  be put  to residential  purpose.  There  was  no conversion of  the building as such is involved in this case but a  change of  user of  the building. Furthermore, in any event the  proviso to  Section (  I) makes  it clear, in our opinion, that  such conversion as contemplated by Section 17 of  the   Act  for   which  permission  in  writing  by  the Accommodation Controller  required is  in case  of change of the user  of the  premises by  the tenant  and  not  by  the landlord. The use of the expression "such conversion" in the proviso indicates  that in  case of conversion by the tenant permission is  required on  the  consent  of  the  landlord. Therefore the  absence  of  permission  in  writing  of  the Accommodation Controller  in this  case does  in our opinion affect the  position. This  appears to  be the  view of  the Kerala High  Court on this aspect of the matter. See in this connection Muhammed  v. Abdul Rahiman, [1983] K.L.T. 874 and Das Naik v. Narayanan, [1980] K.L.T. 951. This appears to be the correct view of law. Our attention was also not drawn to any decision  of the  Kerala High  Court which has taken any contrary view.  The view  held by  the Kerala  High Court in this aspect  has been  relied  by  the  High  Court  in  the judgment under appeal. It seems to be logical view. We would therefore  follow   that  view.   In  view  of  the  proviso explaining the  ambit of  that requirement  that  permission sought for  or mentioned  in Section  17(1) is in respect of the different  user by  the tenant  and not by the landlord. The High Court has also observed in term 86 "convert" does  not denote  a mere  change in  the  mode  of occupation, but  covers only  alterations  of  the  physical features, the  prescriptions of Section 17 are not attracted to the  present case  at all.  Admittedly  the  building  in question has  rooms which  can be used as bed rooms, sitting room  etc.  and  it  has  a  kitchen  and  dining  hall.  No alteration or  conversion is  required if the building is to be used for residential purposes.      In the  aforesaid view  of the  matter there was hardly any scope  for interference  by the  District Judge  and  he declined to  do so  on this  basis. In  our opinion  he  was right. Similar  was the  position of the High Court on these

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facts and  it declined  to interfere  with the  findings  of fact.      In the aforesaid view there is no merit in this appeal. The appeal  fails and is dismissed accordingly. Parties will pay and bear their own costs.      Since the  tenants  have  been  in  possession  of  the premises for  some  time  we  direct  that  the  decree  for eviction shall  not be  executed till 30.9.1988 provided all the heirs of deceased appellant file an usual undertaking in this Court  within four weeks from today stating inter alia. as follows;      1.  That  the  appellant  will  hand  over  vacant  and      peaceful  possession   of  the  suit  premises  to  the      respondent on or before 30.9.1988 from today.      2. That  the appellants  will  pay  to  the  respondent      arrears of rent, if any, within one month from today.      3. That  the appellants  will  pay  to  the  respondent      future compensation  for use and occupation of the suit      premises month by month before 10th of every month.      4. That the appellants will not induct any other person      in the suit premises.      It is  further directed  that in  default of compliance with  any  one  or  more  of  these  conditions  or  if  the undertaking is  not filed  as required within the stipulated time, the decree shall become executable forthwith. P.S.S.                                    Appeal dismissed . 87